30.7.2011

Official Journal of the European Union

C 226/13

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(Case C-239/11 P)

2011/C 226/26

Language of the case: German

Parties

Appellant: Siemens AG (represented by: Drs I. Brinker, C. Steinle, M. Hörster, Rechtsanwälte)

Other party to the proceedings: European Commission

Form of order sought

1.Set aside the judgment of the General Court (Second Chamber) of 3 March 2011 (Case T-110/07) in so far as the appellant is adversely affected by that judgment;

2.Partially annul the Commission Decision of 24 January 2007 (COMP/F/38.899 — Gas insulated switchgear) in so far as it concerns the appellant,

In the alternative, cancel or reduce the fine imposed on the appellant in that decision;

3.In the alternative to the second head of claim, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice as to points of law;

4.In any event, order the Commission to pay the costs incurred by the appellant in respect of the proceedings before the General Court and the Court of Justice

Pleas in law and main arguments

The present appeal is directed against the judgment of the General Court by which that court dismissed the action brought by the appellant against Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear).

The appellant relies on seven grounds of appeal in total:

First of all, the General Court infringed the fundamental right to a fair hearing (Article 6 ECHR in conjunction with Article 6(3) TEU and the second paragraph of Article 47 of the Charter of Fundamental Rights) and the rights of the defence (Article 48(2) of the Charter of Fundamental Rights) in that it based its finding that the appellant had participated in the cartel in the period from 22 April to 1 September 1999 conclusively on the testimony of a witness, without having given the appellant the possibility of questioning that witness.

Secondly, the General Court in concluding that the appellant had participated in the cartel in the period from 22 April to 1 September 1999 distorted evidence and failed to have regard to common experience. The General Court therefore wrongly assumed that the appellant had participated in the cartel in the period from 22 April to 1 September 1999 and determined the duration of the infringement incorrectly.

Thirdly, the General Court wrongly held that the rules on limitation of actions did not apply to the period before 22 April 1999 and incorrectly assumed that there was a single and continuous infringement.

Fourthly, the General Court infringed the principle of equal treatment in that it approved of the Commission’s use of different reference years in establishing the relative weight of the undertakings which participated in the infringement and of the resulting erroneous classification of the appellant according to Section 1A of the Guidelines on fines.

Fifthly, the General Court did not reduce the increase in the basic amount of the fine, which is supposed to ensure that there is sufficient deterrent effect, in accordance with the difference in size between the appellant and ABB and thus infringed the principle of equal treatment.

Sixthly, the General Court infringed Article 6 ECHR and Article 47 of the Charter of Fundamental Rights of the European Union in that it did not make any use of its unlimited right to review the Commission’s decisions on fines.

Seventhly, the General Court disregarded the scope of the obligation to state reasons arising out of Article 296 TFEU (ex Article 253 EC) in that it made insufficient demands in respect of the requirements arising from the obligation to state reasons applicable to the calculation of the deterrent multiplier.

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